June 2017 Newsletter
We are delighted to announce the launch of our completely redesigned website. Please explore it here at  www.PollartMiller.com

Congratulations go out to  Eric Pollart as the winner of the 2017 Professionals in Workers Compensation Outstanding Respondent Attorney Award! The PWC Awards Banquet was held Friday, May 12th at the Double Tree hotel in Stapleton.   Please join us in congratulating Eric on this well-deserved honor.   
Attorney  Richard A. Orona ,  partner with Pollart Miller, LLC, was recently asked to  provide sworn testimony before the Colorado Legislation on behalf of the Colorado Defense Lawyers Association regarding two bills - SB 181 and SB-182.  Mr. Orona testified in support of the proposed amended statute that was brought forth in order to address current law which forbids uninsured and underinsured medical coverage from taking a setoff when medical insurance pays a part of the damages caused by a crash.  Mr. Orona specifically testified that this does not require the insurers to pay more than the actual damages caused by the crash and an insurer is authorized to prohibit stacking the limits of more than one uninsured motorist coverage policy if the provisions are included in a single policy covering multiple vehicles or in multiple policies issued by one insurer or by insurers under common ownership or management.  Mr. Orona maintained that this provision must not prohibit stacking of the uninsured or underinsured policies issued to an insured by different companies or to an unrelated person. The maximum liability under the uninsured motorist coverage is the lesser of the policy limits and amounts paid by a legally liable person or the amount of damages sustained but not recovered.
Recent Case Reviews Highlights
Colorado Court of Appeals
American Family Mutual Insurance Company v. Omar Ashour
Announced May 18, 2017
Ashour is an employee and co-owner of Nubilt Restoration & Construction (Nubilt). While employed with Nubilt, Ashour was severely injured and the accident was caused by the negligence of his co-employee ("Peake").  After the accident, Ashour submitted a claim arising out of Workers' Compensation Act of Colorado (the Act) to Nubilt's workers' compensation carrier and subsequently received benefits.  Ashour then made a claim under his personal automobile insurance policy with American Family Mutual Insurance ("AFI") for UIM benefits to recover the remainder of his alleged damages. After receiving Ashour's claim, AFI filed this action in district court seeking a declaratory judgment as to whether Ashour was owed UIM coverage considering the Act provided Ashour with his exclusive remedy for damages and that the Act immunized the tortfeasors from tort suits.  Subsequently, Ashour filed a motion for summary judgment, relying on Borjas v. State Farm Mutual Automobile Insurance Co., 33 P.3d 1265 (Colo. App. 2001), in which the Colorado Court of Appeals defined the phrase "legally entitled to recover" and ultimately concluded that an insured was "legally entitled to recover" even when the tortfeasor was immune from suit under the Colorado Governmental Immunity Act (CGIA). The district court denied Ashour's motion for summary judgment and allowed the case to proceed for a determination of whether Peake had been acting within the course and scope of her employment at the time of the accident.  Several weeks later, AFI filed its own motion for summary judgment asserting that, as a matter of law, Peake had been acting within the course and scope of her employment.  After full briefing by both parties, the court entered a second written order, reaffirming its prior order on the coverage issue and concluding on undisputed facts that the tortfeasor was acting within the course and scope of her employment at the time of Ashour's accident.  Accordingly, the court granted AFI's motion for summary judgment and declared that AFI was not obligated under Ashour's policy to pay Ashour UIM benefits.  On appeal, the Colorado Court of Appeals held that the district court erred by ruling, as a matter of law, that his claim for underinsured motorist (UIM) coverage under his automobile insurance policy with AFI was precluded because he was not legally entitled to sue his employer or co-employee in tort for his injuries based on their immunity under the Workers' Compensation Act of Colorado.
Colorado Court of Appeals
Martinez v. American Family Mutual Insurance Company
Announced Feb. 9, 2017
Martinez owned a home with a finished basement with windows below the ground, which were surrounded by window wells.  On August 3, 2013, there was a severe thunderstorm and some of the heavy hail and rain collected at the base of the house's window wells, and the hail at the base of the window wells prevented the accumulating rainwater from percolating into the ground. The rainwater accumulated on top of the hail to such an extent that it eventually overflowed the basement windows, seeped into the basement, and caused substantial damage to his home and personal property.  Martinez filed a claim with his insurer, American Family Mutual Insurance Company ("AFI").  After conducting an investigation, American Family concluded that the damage to Martinez's home was caused by either "flooding" or "surface water," and was, therefore, expressly excluded from coverage under Martinez's insurance policy.  American Family denied Martinez's claim on these grounds.  Thereafter, Martinez filed suit, seeking a declaratory judgment on the issue of coverage.  Martinez also asserted claims for contractual and extra-contractual damages.  AFI filed a motion for summary judgment on the issue of coverage, arguing that the insurance policy's water damage exclusion for "flood" and "surface water" applied, as a matter of law, to the damage to Martinez's home.  The district court granted AFI's motion for summary judgment, concluding that the rain and hail that collected in the window wells was "surface water" and, thus, the loss from the resulting damage was excluded by the plain language of the insurance policy.  The Colorado Court of Appeals upheld the district court's ruling and held that the precipitation that accumulated within the window wells of Martinez' home was surface water, and its character was not changed upon entering the window wells. 
If you would like more information about these cases, please feel free to call our attorneys at (720) 488-9586.
Associate Watch
Pollart Miller LLC is pleased to announce  Kendra Garstka as the latest associate attorney to join our team.  Kendra graduated with her J.D. from Chicago-Kent College of Law, and received her B.A. from American University.  To read more about Kendra, please click on the hyperlink above.
Monthly Employment Law Tip by Joseph Irwin
For those of you employers who are scrambling to comply with the July 1, 2017, deadline for the Occupational Safety and Health Administration's (OSHA) new electronic submission requirements ... you may have additional time before you are required to electronically file injury and illness data, but exactly how much additional time is not yet known.

The delay is a result of the widespread criticism of the new rule, and many have questioned how employers can be expected to comply with the new reporting requirements, particularly when OSHA itself appears unable to launch a website capable of accepting those submissions.  Thus, on May 17, OSHA posted a  notice on its website stating that the agency "is not accepting electronic submission of injury and illness logs at this time and intends to propose extending the July 1, 2017, date by which certain employers are required to submit the information from their completed 2016 form 300A electronically." OSHA's notice does not indicate how long of a delay the agency intends to seek.

Therefore, the recommendation remains to use best efforts to comply by July 1, and if unable, to only expect a very short reprieve thereafter.
Monthly Workers' Compensation Tip
When a general contractor for any kind of work hires a subcontractor, who in turn hires employees or other subcontractors to perform the work, both the general contractor and the subcontractors are required to provide workers' compensation insurance to their employees.   If an employee of a subcontractor is injured on the job, the employee will be covered by the subcontractor's workers' compensation insurance policy.  However, if the subcontractor fails to be insured, the employee may obtain workers' compensation benefits under the policy held by the general contractor.  In this instance, the general contractor is considered the "statutory employer."   
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